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News & Events


Intellectual Property Malpractice Suits Belong in State Court, Justices Rule

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Lane Powell Shareholder Paul Swanson was quoted in a February 20 Law360 article titled “IP Malpractice Suits Belong in State Court, Justices Rule.” The article discussed whether legal malpractice suits involving patent issues belong in federal or state court. On January 16, the U.S. Supreme Court heard oral arguments on the issue to determine whether such cases should be heard at the state or federal level. On February 20, it was unanimously ruled that such suits should almost always be heard in state court, unless the case raises significant issues for the federal patent system as a whole. Swanson commented on the court’s decision.

With most patent-related malpractice suits now proceeding in state court, litigants will have to be prepared to take the time to educate judges about the specifics of patent law, said Paul Swanson of Lane Powell PC.

“We’ll need experts to explain to state court judges and their staff patent law issues they would otherwise never encounter,” he said. “I think we’re going to miss the regularity of federal court decisions that had actually started creating a body of law.”…

… Suits over litigation malpractice will hardly ever meet the standard, Swanson said. But it’s possible that allegations of misconduct during patent prosecution could pass muster, so that a state court could avoid having to rule on standards of practice before the U.S. Patent and Trademark Office.

For the most part, though, the ruling is “somewhat of a rebuke to the Federal Circuit,” he said. It will return the litigation landscape to where it was before the 2007 decisions, when most patent malpractice cases were filed in state court.

Read the article (PDF).